On a daily basis, I review information about potential clients and their medical treatment for the purpose of determining if they have an economically viable case I can help them with. An economically viable medical malpractice case is one in which there is a good chance to be successful and to recover enough money to make the risks of suit worth taking. I have previously blogged about the elements necessary for an economically viable medical malpractice case. You can find some of those posts here, here, and here. See if you can apply those elements to this scenario of a fictional patient and decide if there are enough of the elements present to justify spending the thousands of dollars on the expert reviews that would be necessary, if the decision is made to go forward..
The prospective client was 55 years old when he went to the local emergency room with a complaint of shoulder pain with radiation into his back. It had been bothering him for three days and was first noticed after he trimmed some trees around his house. He reported he had taken some aspirin and it helped.
At the emergency department they gave him an EKG, a test of the electrical impulses in the heart, and it was normal. They also drew blood and tested it. The blood showed some elevation of the troponins, substances that may be released into the blood if there is muscle damage, including damage to the heart caused by a heart attack. While the troponins were elevated, the elevation was not very far out of the range of normal. The personnel at the emergency department observed him for a while and he reported that he was feeling better. They discharged him to home with a diagnosis of chest wall discomfort probably due to muscle strain and a prescription for muscle relaxants and non-narcotic pain medication. They instructed him to return to the hospital if he got worse.
At home the prospective client’s pain became worse and began to move into his chest. His wife urged him return to the hospital, but he refused. Four hours after returning home, he collapsed to the floor. The wife called 911 and the paramedics took him back to the hospital. At the hospital, an EKG confirmed he had experienced a heart attack. The chest pain that brought him to the hospital in the first place was cardiac in nature. Over the next few months, he got better to the point that he was able to resume all of his pre-heart attack activities. An echocardiogram showed that his heart was pumping in the low end of the normal range. His medical bills were $50,000, almost all of which were paid for by his health insurance.
Case or no case?
My Analysis: Although it is a close call, I would not feel comfortable going forward with this case for a number of reasons.
In the first place, I would have to prove that the emergency department physician fell below the standard of care for ER doctors encountering a patient with these complaints and I would have to prove it by clear and convincing evidence. This is a particularly high standard of proof that has been set by the Arizona State Legislature to make it harder for patients injured by emergency department malpractice to win at trial. Here the ER doctor suspected a possible heart attack and ordered tests which may show its existence. The EKG was normal. However, as often as 30% of the time when a patient is having a heart attack, the EKG can be normal. This is especially true if the heart attack is not severe or if the EKG is performed early in the process. These normal EKG’s are referred to as false negatives. While the troponins were elevated, they were not very elevated. The patient reported tree trimming, which could account for his shoulder pain. His complaints at the ER were not classic for a heart attack and he seemed to improve while he was there.
Secondly, it appears the prospective client has made an excellent recovery. In my experience, when patients make a good recovery, the jury is very reluctant to find against the doctor. Even if the jury were to find in favor of the prospective client, the good recovery means that the damages awarded would likely not be sufficient to make the case viable. Because the Arizona legislature allows medical malpractice defendants to inform the jury that the medical bills were paid by insurance, juries typically do not include those medical bills in any award they make. The case will be an expensive one to put on and would need to have a likely jury award of at least $350,000 to make it worthwhile. Such an award is unlikely here.
Lastly, I am very concerned that, after he returned home from the ER, the client’s pain got worse but he refused to return to the hospital. Juries view failure to follow instructions in a very dim light. If the jury did find in favor of the prospective client in spite of his failure to follow the discharge instructions, it would likely assign him a substantial portion of fault, which would reduce any damage award the jury might make.
I don’t do a prospective client any favors if I accept a case that is not likely to be successful. While I advance all of the costs and do not get reimbursed for them unless I make a recovery for the client, the client faces risks from a failed case as well. The client has to put up with two years of worrying about the case and then must spend two or three weeks of his life in a courtroom listening to a team of defense lawyers speak ill of him. Finally, if we lose the case, the court will impose cost judgments against the client. These can be many, many thousands of dollars and will be the sole responsibility of the client. For my sake and that of the prospective client, I need to do a good job of deciding case or no case.
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